A BILL to amend and reenact §62-12-26 of the Code of West Virginia,
1931, as amended, relating to limitations and restrictions
placed on sex offenders who have been adjudicated as violent
sexual predators or who are under active supervision as a
condition of release on parole or probation; and clarifying
the statutory restrictions against such persons living or
working within one thousand feet of a school, child care
facility or residence of a former victim; defining terms.

Be it enacted by the Legislature of West Virginia:

That §62-12-26 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:

(a) Notwithstanding any other provision of this code to the
contrary, any defendant convicted after the effective date of this
section of a violation of section twelve, article eight, chapter
sixty-one of this code or a felony violation of the provisions of
article eight-b, eight-c or eight-d of saidthat chapter shall, as
part of the sentence imposed at final disposition, be required to
serve, in addition to any other penalty or condition imposed by the
court, a period of supervised release of up to fifty years:
Provided, That the period of supervised release imposed by the
court pursuant to this section for a defendant convicted after the
effective date of this section as amended and reenacted during the
first extraordinary session of the Legislature, 2006, of a
violation of section three or seven, article eight-b, chapter
sixty-one of this code and sentenced pursuant to section nine-a of
saidthat article, shall be no less than ten years: Provided,
however, That a defendant designated after the effective date of
this section as amended and reenacted during the first
extraordinary session of the Legislature, 2006, as a sexually
violent predator pursuant to the provisions of section two-a,
article twelve, chapter fifteen of this code shall be subject, in
addition to any other penalty or condition imposed by the court, to
supervised release for life: Provided further, That pursuant to
the provisions of subsection (g) of this section, a court may
modify, terminate or revoke any term of supervised release imposed
pursuant to subsection (a) of this section.

(b) Any person required to be on supervised release for a
minimum term of ten years or for life pursuant to the provisos of
subsection (a) of this section also shall be further prohibited
from:

(1) Establishing a residence or accepting employment within
one thousand feet from the perimeter of a school or child care
facility or within one thousand feet of the residence of a victim
or victims of any sexually violent offenses for which the person
was convicted. For the purposes of this subdivision, “residence”
includes the yard, grounds, outbuildings and common or public areas
in or surrounding the residence; “child care facility” includes the
classrooms, buildings, playground areas, parking lots and common
areas utilized by children while attending the child care
facility;“school” means an educational facility comprised of one or
more buildings including school grounds, used by students during
regular school hours or during any school-sponsored function or
extracurricular activities; “school grounds” includes the land on
which a school is built together with such other land used by
students for play, recreation or athletic events while attending
school; and ”extracurricular activities” means voluntary activities
sponsored by a school, a county board or an organization sanctioned
by a county board or the state board of education, and include, but
are not limited to, preparation for and involvement in public
performances, contests, athletic competitions, demonstrations,
displays, organizations and clubs.

(2) Establishing a residence or any other living accommodation
in a household in which a child under sixteen resides if the person
has been convicted of a sexually violent offense against a child,
unless the person is one of the following:

(i)(A) The child’s parent;

(ii)(B) The child’s grandparent; or

(iii)(C) The child’s stepparent and the person was the
stepparent of the child prior to being convicted of a sexually
violent offense, the person’s parental rights to any children in
the home have not been terminated, the child is not a victim of a
sexually violent offense perpetrated by the person, and the court
determines that the person is not likely to cause harm to the child
or children with whom such person will reside: Provided, That
nothing in this subsection shall preclude a court from imposing
residency or employment restrictions as a condition of supervised
release on defendants other than those subject to the provision of
this subsection.

(c) The period of supervised release imposed by the provisions
of this section shall begin upon the expiration of any period of
probation, the expiration of any sentence of incarceration or the
expiration of any period of parole supervision imposed or required
of the person so convicted, whichever expires later.

(d) Any person sentenced to a period of supervised release
pursuant to the provisions of this section shall be supervised by
a multijudicial circuit probation officer, if available. Until
such time as a multijudicial circuit probation officer is
available, the offender shall be supervised by the probation office
of the sentencing court or of the circuit in which he or she
resides.

(e) A defendant sentenced to a period of supervised release
shall be subject to any or all of the conditions applicable to a
person placed upon probation pursuant to the provisions of section
nine of this article: Provided, That any defendant sentenced to a
period of supervised release pursuant to this section shall be
required to participate in appropriate offender treatment programs
or counseling during the period of supervised release unless the
court deems the offender treatment programs or counseling to no
longer be appropriate or necessary and makes express findings in
support thereof.

Within ninety days of the effective date of this section as
amended and reenacted during the first extraordinary session of the
Legislature, 2006, the Secretary of the Department of Health and
Human Resources shall propose rules and emergency rules for
legislative approval in accordance with the provisions of article
three, chapter twenty-nine-a of this code establishing
qualifications for sex offender treatment programs and counselors
based on accepted treatment protocols among licensed mental health
professionals.

(f) The sentencing court may, based upon defendant's ability
to pay, impose a supervision fee to offset the cost of supervision.
Said fee shall not exceed $50 per month. Said fee may be modified
periodically based upon the defendant's ability to pay.

(g) Modification of conditions or revocation. -- The court
may:

(1) Terminate a term of supervised release and discharge the
defendant released at any time after the expiration of two years of
supervised release, pursuant to the provisions of the West Virginia
Rules of Criminal Procedure relating to the modification of
probation, if it is satisfied that such action is warranted by the
conduct of the defendant released and the interests of justice;

(2) Extend a period of supervised release if less than the
maximum authorized period was previously imposed or modify, reduce
or enlarge the conditions of supervised release, at any time prior
to the expiration or termination of the term of supervised release,
consistent with the provisions of the West Virginia Rules of
Criminal Procedure relating to the modification of probation and
the provisions applicable to the initial setting of the terms and
conditions of post-release supervision;

(3) Revoke a term of supervised release and require the
defendant to serve in prison all or part of the term of supervised
release without credit for time previously served on supervised
release if the court, pursuant to the West Virginia Rules of
Criminal Procedure applicable to revocation of probation, finds by
clear and convincing evidence that the defendant violated a
condition of supervised release, except that a defendant whose term
is revoked under this subdivision may not be required to serve more
than the period of supervised release;

(4) Order the defendant to remain at his or her place of
residence during nonworking hours and, if the court so directs, to
have compliance monitored by telephone or electronic signaling
devices, except that an order under this paragraph may be imposed
only as an alternative to incarceration.

(h) Written statement of conditions. -- The court shall
direct that the probation officer provide the defendant with a
written statement at the defendant's sentencing hearing that sets
forth all the conditions to which the term of supervised release is
subject and that it is sufficiently clear and specific to serve as
a guide for the defendant's conduct and for such supervision as is
required.

(i) Supervised release following revocation. -- When a term
of supervised release is revoked and the defendant is required to
serve a term of imprisonment that is less than the maximum term of
supervised release authorized under subsection (a) of this section,
the court may include a requirement that the defendant be placed on
a term of supervised release after imprisonment. The length of
such term of supervised release shall not exceed the term of
supervised release authorized by this section less any term of
imprisonment that was imposed upon revocation of supervised
release.

(j) Delayed revocation. -- The power of the court to revoke
a term of supervised release for violation of a condition of
supervised release and to order the defendant to serve a term of
imprisonment and, subject to the limitations in subsection (i) of
this section, a further term of supervised release extends beyond
the expiration of the term of supervised release for any period
necessary for the adjudication of matters arising before its
expiration if, before its expiration, a warrant or summons has been
issued on the basis of an allegation of such a violation.